Kerala High Court
Shibu vs State Of Kerala on 18 February, 2025
Crl.Appeal No.90 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
CRL.A NO. 90 OF 2014
AGAINST THE JUDGMENT DATED 18.12.2013 IN SC NO.955 OF
2011 ON THE FILE OF THE COURT OF SESSION,ALAPPUZHA.
APPELLANT/ACCUSED IN SESSIONS CASE:
SHIBU
S/O.AHAMMED PILLAI,
PANJIYIL VEEDU,
KULATHUPUZHA PANCHAYATH WARD NO.5,
VILLUMANGALAM.P.O, KOLLAM DISTRICT.
BY ADV SMT.V.BEENA
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
12/02/2025, THE COURT ON 18/02/2025 DELIVERED THE
FOLLOWING:
Crl.Appeal No.90 of 2014
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C.S.SUDHA, J.
---------------------------------------------
Crl.Appeal No.90 of 2014
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Dated this the 18th day of February 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the
appellant, the sole accused in S.C.No.955/2011 on the file of the
Court of Session, Alappuzha challenges the conviction entered
and sentence passed against him for the offences punishable under
Sections 279, 337, 304A IPC; Section 134 (a)(b) read with
Section 187 of Motor Vechicles Act, 1988 (the M.V.Act) and
Section 139 of the Electricity Act, 2003.
2. The prosecution case is that on 23/10/2009 at
11:45 a.m., the accused drove lorry bearing registration no.KL-
07/AG-7570 through the Alappuzha - Ernakulam National
Highway from north to south in a rash and negligent manner so as
to endanger human life and when he reached near Arthunkal
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bypass, the lorry dashed against the rear side of the car bearing
registration no.KL-37/6977 which had been stopped at the traffic
signal. The accused lost control of his vehicle and he knocked
down Poojalakshmi Pai, the daughter of PW1. Thereafter, the
lorry dashed against the electric and traffic signal post resulting in
causing damages to the tune of ₹45,526/- to the KSEB. The
accused neither informed the police about the incident nor took
Poojalakshmi Pai to the hospital. Poojalakshmi Pai thereafter
succumbed to the injuries on 31/10/2009 at 12:45 p.m. while
undergoing treatment. Hence as per the final report, the accused
is alleged to have committed the offences punishable under the
aforementioned Sections.
3. Crime no.891/2009, Cherthala Traffic police
station, that is, Ext.P10 FIR was registered by PW14, the then
Sub Inspector, Traffic Unit, Cherthala police station based on
Ext.P1 FIS of PW1. The investigation was conducted by PW13
and PW14 and the latter on completion of the investigation
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submitted the final report/charge sheet before the jurisdictional
magistrate.
4. On appearance of the accused, the jurisdictional
magistrate after complying with all the necessary formalities
contemplated under Section 209 Cr.P.C. committed the case to
the Court of Session, Alappuzha. The case was taken on file as
S.C.No.955/2011 and thereafter made over to the Additional
Sessions Judge, Alappuzha, for trial and disposal.
5. When the accused appeared before the court, a
charge under Sections 279, 337, 304(A) IPC; 134 (a)(b) of the
M.V Act and 139 of the Electricity Act was framed, read over and
explained to the accused to which he pleaded not guilty.
6. On behalf of the prosecution, PW1 to PW14
were examined and Exts.P1 to P12 were marked in support of the
case. After the close of the prosecution evidence, the accused was
questioned under Section 313(1)(b) Cr.P.C. with regard to the
incriminating circumstances appearing against him in the
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evidence of the prosecution. The accused denied all those
circumstances and maintained his innocence.
7. As the trial court did not find it a fit case to
acquit the accused under Section 232 Cr.P.C., he was asked to
enter on his defence and adduce evidence in support thereof. No
oral or documentary evidence was adduced by the accused.
8. On consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment found the accused guilty of the offences
punishable under Section 279, 337, 304A IPC, Section 134(a)(b)
read with Section 187 of the M.V. Act and Section 139 of the
Electricity Act. Hence he has been sentenced to simple
imprisonment for three months and to a fine of ₹500/- and in
default to simple imprisonment for 15 days for the offence
punishable under Section 279 IPC; to simple imprisonment for
two months and to a fine of ₹500/- and in default to simple
imprisonment for ten days for the offence punishable under
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Section 337 IPC; to rigorous imprisonment for one year and to a
fine of ₹10,000/- and in default to simple imprisonment for six
months for the offence under Section 304A IPC; to a fine of
₹500/- each for the offences punishable under Sections 134(a)(b)
read with Section 187 of the M.V. Act and in default to simple
imprisonment for ten days each and to a fine of ₹10,000/- and in
default to simple imprisonment for six months for the offence
under Section 139 of the Electricity Act. The fine amount
imposed for the offences punishable under Section 279, 337 and
304 A, if recovered, has been directed to be paid to PW1, the
father of deceased Poojalakshmi Pai. From the fine amount
imposed for the offence under Section 139 of the Electricity Act,
an amount of ₹8,000/- has been directed to be paid to the KSEB.
The sentences have been directed to run concurrently. Set off
under Section 428 Cr.P.C. has been allowed. Aggrieved, the
accused has come up in appeal.
9. The only point that arises for consideration in
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this appeal is whether the conviction entered, and sentence passed
against the appellant/accused by the trial court are sustainable or
not.
10. Heard both sides.
11. It was submitted by the learned counsel for the
appellant/accused that the evidence on record is totally
unsatisfactory to establish the offences alleged against the
accused. No rashness or negligence on the part of the accused has
been established. It was only an error of judgment which resulted
in the incident. In support of the arguments, reference was made
to the dictum in Syad Akbar v. State of Karnataka, 1980 KHC
527: 1980 (1) SCC 30.
12. Per contra, it was submitted by the learned
public prosecutor that the materials on record are sufficient to
establish the offences alleged against the accused and there being
no infirmity, no interference into the impugned judgment is called
for.
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13. In Syad Akbar (Supra), the appellant/accused
therein was driving a passenger bus. When the bus reached the
place of occurrence, a girl aged about 4 years ran across the road.
The appellant swerved the vehicle towards the extreme right side
of the road. Despite the same, the child was hit who died on the
spot. The appellant was found guilty of the offence punishable
under Section 304A IPC by the trial court and he was sentenced
to imprisonment as well as fine. The judgment was confirmed in
appeal by the Sessions Court as well as in revision by the High
Court. The appellate court invoked the maxim of res ipsa
loquitur to confirm the finding of the trial court.
13.1. The Apex Court noticed that the substance of
the prosecution story that emerged from the testimony of the
eyewitnesses was that at the material time, the accused therein
was driving the bus slowly as there was a narrow bridge ahead.
The mother of the child came from the habitation of the village to
go to the field across the road at some distance, where her
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husband was working. The child was following the mother.
Before crossing the road, the mother directed the child not to
follow her and to return home. However, when the mother
crossed the road and descended into the deep ditch on the
opposite side of the road, the child crying suddenly dashed across
the road to join her mother. The appellant therein, to save the
child, swerved the vehicle to the extreme right side of the road.
According to the eyewitnesses, the appellant had sounded the
horn also. However, the child was caught under the left front
wheel of the vehicle and was crushed to death. One of the
witnesses deposed that if the appellant had taken the bus beyond
the point where the child was hit, the bus would have fallen into
the deep ditch by the side of the road along with the passengers.
During his examination under Section 313 Cr.P.C., the appellant
stated that he was driving the vehicle slowly; that the child all of a
sudden came on to the road from the left side to cross it; that in
order to avoid a collision with the child, he had immediately
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swerved the vehicle towards the right side of the road, but he
failed to save the child. Thus, the defence plea was that the
incident could not be avoided in the circumstances, despite the
care taken by him. Though the eyewitnesses had deposed that the
vehicle was being driven slowly; that the child had come
suddenly onto the road and that the driver had swerved the vehicle
towards the extreme right to save her, but was unable to do so,
was disbelieved and the appellant/accused convicted.
13.2. It was held that the act of the appellant therein
in taking the vehicle suddenly to the extreme right of the road, did
not speak of negligence or dereliction of duty to exercise due care
and control by the accused. Nor could it be said that the cause of
swerving the vehicle to the right was unknown. The accused had
given a reasonably convincing explanation of his conduct in
doing so, and his version was fully supported by four prosecution
witnesses who had seen the occurrence. In such circumstances, it
was held that the maxim res ipsa loquitur could have no manner
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of application in the case. It was evident from the materials on
record that the incident in the said case happened due to an error
of judgment and not negligence or want of driving skill on the
part of the accused. An error of judgment of the kind, such as the
one referred to, which comes to light only on post-accident
reflection, but could not be foreseen by the accused in that
fragmented moment before the accident, is not a sure index of
negligence, particularly, when in taking and executing that
decision the accused was acting with the knowledge and in the
belief that the same was the best course to be adopted in the
circumstances for everyone's safety. Had the accused swerved the
vehicle to the extreme right side of the road, not only to avoid
collision with the child but also to avoid the risk of the vehicle
falling into deep ditches on either side of the road, and the
resultant possibility of far greater harm to the passengers in the
bus. Hence it was held that the trial court as well as Sessions
Court had gone wrong in applying the maxim and holding that
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there was rashness or negligence on the part of the appellant
therein. Hence the appeal was allowed, and the accused
acquitted.
14. Coming back to the case on hand, I will briefly
refer to the testimony of the material witnesses to ascertain
whether the incident was due to an error of judgment of the
accused or something that was beyond the control of the accused.
Ext.P1 FIS was given by PW1, the father of the deceased on
23/10/2009 at 05:30 p.m. In the FIS it is stated that Poojalakshmi
Pai, his daughter on the said day was returning home from school
along with her friends. When they reached Arthungal bypass
junction, a lorry bearing reg.no..KL- 07/AG-7570 coming from
the north towards the south through the Alappuzha-Ernakulam
National Highway dashed against a car bearing registration no.
KL-37/6977 which was stopped at the traffic signal. The accused
lost control of his vehicle and hit the electric post standing on the
eastern side of the road and then hit his daughter. He had been
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told that the incident was due to the negligent driving by the
driver of the lorry. PW1 when examined, stands by his version in
Ext.P1 FIS. However, he has only hearsay knowledge about the
incident.
14.1. PW2, an eyewitness, deposed that the incident
took place on 23/10/2009. On the said day he was engaged in
painting in the workshop situated on the eastern side of Arthungal
bypass junction. Lorry-bearing registration No. KL-07/AG-7570
did not hit any other vehicle. The lorry came and hit the child and
then on the electric post. Poojalakshmi Pai who was on a bicycle,
was knocked down by the lorry. Seeing the incident, he ran
towards the scene, by which time another person picked up the
child and took her to hospital. He did not see the person driving
the offending lorry. But he saw a person running away from the
lorry. He identified the accused as the person who had taken to
his heels on the said day. When PW2 was asked whether he had
stated to the police that the lorry had hit a car bearing registration
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No. KL-37/6977, he answered in the affirmative. The incident
occurred due to negligent driving by the accused. In the cross-
examination PW2 deposed that the workshop where he was
working is situated about 10 meters below the place of
occurrence. When the incident occurred, he was standing outside
the workshop polishing a car and not inside the workshop. He
further deposed that the lorry first hit the car and then knocked
down the child and finally dashed on the electric post. He does
not know who was on the driver seat of the lorry. But he had seen
the accused running away from the lorry. He did not identify the
accused before the police. He identified the accused for the first
time before the court. PW1 deposed that he had clearly seen the
face of the person who had taken to his heels on the said day. To a
suggestion that it was the car that had knocked down the child,
PW2 denied the same and reiterated that it was the lorry that had
knocked down the child.
14.2. PW3 deposed that he is an attestor to Ext.P2
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scene mahazar.
14.3. PW4 deposed that he had seen the incident
which took place on 23/10/2009 at 11:30 a.m. The lorry bearing
registration no. KL-07/AG-7570 driven in speed was coming
through the road from the north to the south. The driver applied
brakes at the signal, but the vehicle did not stop. First the lorry
hit a stationary car in front and then it knocked down the child.
Thereafter, the lorry hit the electric post situated on the eastern
side of the road because of which, the post was broken, resulting
in electric supply of the entire area being disrupted. He went to
the spot hearing the noise and commotion. According to him, the
incident happened due to the fault of the accused. He saw the
driver of the lorry opening the door and running away. He also
deposed that he saw the driver getting down from the driver's seat
and running away. He identified the accused as the person who
took to his heels on the said day. The incident happened due to
the carelessness of the driver of the lorry. His workshop is
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situated about 6 meters away from the scene of occurrence. In the
cross-examination PW4 deposed that at the time of incident, he
was in his workshop polishing a car. He noticed when he heard a
big noise. Hearing the noise when he turned and looked, he saw
the lorry driver getting down from the driver's seat and running
away. PW4 also deposed that the signal was red and hence the
driver of the lorry had applied a sudden brake. The child was
standing by the side of the road with her bicycle. He had taken
the child to the hospital. PW4 denied the suggestion that the child
was knocked down by the car and that the incident happened due
to the carelessness of the driver of the car. PW4 reiterated that it
was the lorry which caused the incident.
14.4. PW13, Additional S.I., Cherthala police
station, deposed that on 31/10/2009, he had prepared Ext.P3
inquest report of the deceased. PW6 deposed that he is an attestor
to Ext.P3 inquest report.
14.5. PW7, Assistant Engineer, Electricity Board,
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deposed that he had issued Ext.P4 certificate to the effect that the
KSEB had sustained damages to the tune of ₹45,526/- as the lorry
bearing registration no.KL-07/AG-7570 had dashed against the
electric post and knocked it down.
14.6. PW8, CMO, KVM hospital, Cherthala, deposed
that on 23/10/2009, he had examined Poojalakshmi Pai, aged 14
years, and had issued Ext.P5 wound certificate. When he
examined the patient, she was unconscious. On examination, he
noted the following injuries -
"Patient was unconscious pupil reacts slightly.
A bone deep L/w of 3 cm x 1 cm over the (L)
parietal region.
(2) Another bone deep L/w of 4cm x 1cm x ½ cm
size just below the above wound.
(3) An abrasion of 4 cm x 3 cm seen over the left
knee joint patient was referred to Lakeshore hospital
after first aid."
14.7. PW9, CMO, Lakeshore hospital, Kochi,
deposed that on 23/10/2009 he had examined Poojalakshmi Pai
and had issued Ext.P6 wound certificate. She had sustained
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grievous injuries. The alleged cause was that while she was
riding a bicycle, she was hit by a lorry at about 11:30 a.m. on
23/10/2009 at Arthungal. She died on 31/10/2009 at 12:45 p.m.
Ext.P6 is the wound certificate issued by him in which he has
noted in detail the injuries seen.
14.8. PW10, Assistant Surgeon, Taluk Headquarters
hospital, Cherthala, deposed that on 31/10/2009, he had
conducted postmortem examination on the body of the deceased
and issued Ext.P7 postmortem certificate. According to him,
death was due to the head injury sustained.
14.9. PW11, AMVI, Cherthala, deposed that on
26/10/2009 he had inspected lorry bearing registration No.KL-
07/AG-7570 as well as the car bearing registration No.KL-
37/6977 Chevrolet Tavera and issued Exts.P8 and P9 certificates.
The damage to the aforesaid vehicles have been noted in column
no.7 of the certificates.
15. I also refer to the explanation given by the
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accused when he was questioned under Section 313 Cr.P.C.
According to the accused, he along with his friend had gone to
Amrita hospital on the date of the incident to meet his friend and
on their way back, he had boarded the offending lorry at
Edappally. When they reached near Cherthala, the vehicle met
with an accident. The driver of the lorry ran away and seeing this
he along with his friend also took to their heels. After some time,
he came back to take his bag which had been kept inside the lorry.
He came to know that the vehicle had been taken to the police
station. Therefore, he went to the police station to get his bag
back. The police then informed him that he needed to execute a
bail bond to get back his bag. Accordingly, he executed a bail
bond.
16. The testimony of the eyewitnesses has not been
discredited or disproved in any way. The scene mahazar, that is
Ext.P2, shows that the road at the place of occurrence is having a
width of about 13 meters. The incident took place about 1½
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meters from the eastern tar-end of the road. Going by the
testimony of the witnesses, the lorry had first hit the car which
was stationary at the traffic signal. Then the accused lost control
of his vehicle, knocked down the child and then dashed against
the electric post standing by the side of the road which was
damaged and broken. The accused has never a case that the
incident happened due to an error of judgment. Ext.P8 certificate
issued by PW11, AMVI, shows that there were no mechanical
defects for the lorry. The brake system was also working fine.
Then the question is how did the incident occur?
17. It is true that vehicles are intended to be driven
in speed. But the driver of the vehicle must have control over the
vehicle and must be able to stop the vehicle wherever necessary.
Here, PW4 deposed that the vehicle was being driven in speed. It
is true that no evidence has been brought in regarding the speed
limit at the place of occurrence. But the fact that the lorry had hit
the stationary car in front of it; that the driver of the lorry lost
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control of the vehicle resulting in the child being knocked down
and then hitting the electric post causing damages is established
through the testimony of the prosecution witnesses, whose
testimony has not been disproved or discredited in any way. The
dictum in Syad Akbar (Supra) is not applicable to the facts in the
present case. In the said case, the accused/the driver therein had
an explanation, and the facts also showed that it was only an error
of judgment that resulted in the incident. In the case on hand, the
accused has no case that there was any error of judgment on his
part or that the incident happened due to reasons beyond his
control. He has no case that he had to swerve the vehicle abruptly
to avoid hitting somebody/vehicle and in the process, he had hit
the child in this case. On the other hand, his case during the
cross-examination of material prosecution witnesses was that it
was the car that was responsible for causing the incident. In his
313 statement to which I have already referred to, he gives quite a
strange story which is quite unbelievable.
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18. It is true that the prosecution witnesses had no
prior acquaintance with the accused. It is also true that no Test
Identification Parade (TIP) was conducted. The prosecution
witnesses had identified the accused for the first time in the dock.
But conduct of TIP is not mandatory in all cases. Here, the
material prosecution witnesses have deposed that they clearly saw
the accused getting down from lorry and running away. The fact
that he was in the lorry and that he had gotten down from the
lorry and taken to his heels, is admitted by the accused in his 313
statement though he gives a different explanation for his presence
in the lorry. If the case of the accused that he was just a
passenger in the lorry was true, then it was quite unnecessary for
him to have taken to his heels on seeing the incident. Based on
the materials on record, the trial court was justified in finding that
the accused guilty of the offences alleged against him. I find no
infirmity in the findings of the trial court calling for an
interference by this Court. Hence the appeal is liable to be
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dismissed.
In the result, the appeal is dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
